Protective claims – amnesty penalty

PURPOSE OF BULLETIN

To advise staff on what to tell taxpayers who received an amnesty penalty, on how to file protective claims in light of several pending court cases.

BACKGROUND

Currently, there are several court cases challenging Revenue and Taxation Code Section 19777.5, which prevents filing refund claims to contest the amnesty penalty on other than computation errors.

WHAT IS A PROTECTIVE CLAIM?

In general, to protect the statute of limitations on a claim, the taxpayer may file a request with the Franchise Tax Board to withhold any action on the claim while an audit determination, legislation or litigation is still pending. The taxpayer may file a protective claim pending the outcome of:

An appeal to the State Board of Equalization.

A court case (with California jurisdiction or public California Court of Appeal Case)

An audit by the Internal Revenue Service.

An audit by another state taxing agency.

Legislation.

Other litigation.

Note: Taxpayers can get more information on the Franchise Tax Board Website at: www.ftb.ca.gov

PROTECTIVE CLAIM PROCEDURES

If the taxpayer wants to file a protective claim based on recent court cases or pending legislation, they should send a letter to the Franchise Tax Board with the following information:

Tax year.

Amount of amnesty penalty paid

A statement requesting the correspondence to be held pending the outcome of pending legislation or litigation.

MAILING ADDRESS

We received your letter dated requesting that the Franchise Tax Board treat your correspondence as a protective claim for refund of the post-amnesty penalty that was imposed for tax year(s).

Because your letter does not assert the grounds that the penalty was not computed properly by the Franchise Tax Board, your letter cannot be treated as a valid “protective” claim for refund of the post-amnesty penalty under Revenue and Taxation Code 19777.5(e).

However, we agree to hold your letter pending a final published court of appeal decision or final legislative change addressing the issue presented, as you have requested. At that time, appropriate action will be taken. The Franchise Tax Board acknowledges that the statute of limitations for you to take action will not expire during the time period that the Franchise Tax Board is holding your correspondence, awaiting the decision of the court of appeal or action on the legislation. This letter does not constitute a denial of a claim for refund for purposes of Revenue and Taxation Code 19323, 19324, 19382 or 19384.